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Lord Campbell of Alloway: I support the amendment. Although I take the point made by the noble Lord, Lord Rooker, that there is nothing actually in the Bill that warrants the amendment, I dealt with the problem that arises on implementation of Clause 1(1)(b) in relation to the White Paper. I said:

"Clause 1(1)(b) . . . as implemented by the White Paper is not only requisite but welcome—save for its control over the process of negotiation and bargaining, and subject always to the consultation that the paper envisaged, in particular, with local government".—[Official Report, 3/7/03; col. GC 234.]

There are two passages in the White Paper that prompted me to say what I did. I left my copy on my desk, I am afraid. The amendment deals with the matter. Although the issue is not in the Bill and may not therefore be strictly necessary, there cannot be any fundamental objection to including it to make sure that people, including myself, think that the White Paper was to guide implementation on this Bill—as on other Bills, perhaps. I thought that that was so. If I am mistaken, it can do no harm to include the amendment as a safeguard and for clarification. For that reason, I support it, subject to what the noble Lord, Lord Rooker says about it.

Baroness Turner of Camden: I hope that my noble friend the Minister will understand—I am sure that he does—that this is not a particularly popular Bill and that this is not a matter of the usual suspects being awkward; it really is not. Many trade unionists feel very concerned about the Bill. As we know, the Fire Brigades Union has already urged that it should not

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proceed. We know that it will of course proceed, and it is up to those of us who feel this way about the Bill to do the best that we can to amend or modify it as it proceeds in Committee.

We have been told that the Bill will be of limited duration and that it is intended to cover only specific and extreme situations. However, my concerns have not been lessened as a result of reading the White Paper. I know that we are not discussing it now; no doubt the opportunity to do so will arise when, eventually, there is legislation before Parliament. We are entitled to believe that the White Paper gives an indication of the Government's thinking about the future. Page 52 of the White Paper makes it clear that it is the Government's intention to keep a fairly tight rein on any negotiating machinery.

As the Bill is drafted, substantial powers will accrue to the Secretary of State and it would be possible without amendment for steps to be taken in relation to the way in which terms and conditions of employment are fixed, which would not be in accord with the way in which we would like to see industrial relations conducted or the way in which they are normally conducted. To that extent, I support what my noble friend Lord McCarthy said. This is an important amendment and I hope that the Minister will give it due consideration in the light of what has been said.

Lord Wedderburn of Charlton: I support the amendment and I want to discuss aspects of it in relation to the Bill. We are only discussing the Bill, and the question is not what the intention of any Secretary of State at present is. The question is: what are the powers that noble Lords are about to legislate for a Secretary of State in the next two years? That is the only question.

The powers in the Bill—the Minister was quite right when he intervened on my noble friend—give the Secretary of State the power, under Clause 1(1)(a) to,

"fix or modify the conditions of service of fire brigade members".

"Conditions of service" is not defined in the Bill; it is described under Clause 2(2) as including,

"pay and allowances, hours of duty or leave".

Obviously, those are within "conditions of service", but they are not the full meaning of "conditions of service"; otherwise, the word "includes" would not be used on normal canons of construction. "Conditions of service" is a wide phrase; we will come to its precise meaning in relation to a future amendment in a different context.

For the moment, I advance the submission that conditions of service have a relationship to procedural provisions that have their impact on the rights and duties in legal terms of employees. The extent to which procedural conditions in collective arrangements are incorporated into individual contracts of employment is the subject of a vast area of case law. In some cases, they are said to be included but in others they have been said not to be; it depends on the circumstances. My submission is that in the context of the Bill, "conditions of service" could well—indeed, would be

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likely to—include a case in which the modification related to the procedural and substantive aspects of the arrangements that have at their nub the National Joint Council.

I appreciate what my noble friend Lord McCarthy said—I had not thought of it before—that that affects the whole position of recognition. He is right in that. What I had thought of was that that affects the rights that derive from international standards in relation to freedom of association. I refer especially to the ILO Convention No. 87 and the ILO Convention No. 98, which are applied to public employees in ILO Convention No. 151. I also refer to the European Social Charter. If there is any dispute about that, I am happy to read out the provisions but I apprehend that that will not be necessary because it is obvious.

The powers in the Bill—or the Act, if it goes through in this form—could include what government policy wants to do in relation to the National Joint Council, which has immediate impact on "conditions of service"; I use the phrase in the legal sense. There will be an occasion when I must set out the case law on future amendments but I am not doing that at the moment because I hope that it will be accepted. I am sure that the Minister's advisers will have put the case law on this matter before him.

That being obvious, it is very disturbing to realise that the Government are taking the power now to deal with matters whose policy appears in the White Paper. Curiously enough, my noble friend Lord McCarthy read out a passage that makes the case, but a previous passage should be placed on the record. It occurs on page 52. My noble friend Lady Turner referred to the page generally. The whole page is relevant but I shall read out only one sentence. Paragraph 7.12 states:

"First, we will take power to determine the number, composition and chairing of the negotiating body or bodies for England".

That relates specifically not just to new national joint councils, which will be created, but to the existing National Joint Council. It therefore relates specifically to the relationship of that National Joint Council to conditions of service. It therefore relates to the Secretary of State's power in the next two years to make an order that would modify conditions of service in their relationship to the National Joint Council. It would give him the power under this Bill, which he may not want. If he does not want it, then for heaven's sake, accept our amendment. All our amendment is saying is, "You do not have this power until you get your big Bill". That is all we are saying in these amendments. If we have the words wrong, then by all means tell us. I have sufficient experience to know that the words have to be put to draftsmen. However, changes to words matter to me and they matter to the law.

By all means, let us have this amendment if the power which the Bill gives the Secretary of State is not wanted. If he does not want it, let him renounce it. That is all the amendment is saying. The industrial relations argument which my noble friend advanced in moving the amendment is a very strong underpinning of his case. I support the amendment.

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4.30 p.m.

Lord Rooker: As I said in an intervention on my noble friend Lord McCarthy, it is not the case that the Secretary of State does not want the powers. However, even if he did, the Bill does not provide them. It does not matter what kind of elephantine scheme one draws up, unless someone can show me where in the terms and conditions of fire brigade members it says that the constitution of the National Joint Council is part of those terms and conditions, we do not have a debate. The constitution of the NJC is not part of the conditions of fire brigade members. So the Bill cannot change the constitution of the NJC. That is not part of the conditions of service of fire brigade members. So we are engaged in a debate on a different Bill which is for a different parliamentary Session.

It is not a matter of saying that the powers are there but the Secretary of State does not want to use them. We do not want to use any of the Bill's provisions. However, within the narrow confines of this amendment on the constitution of the National Joint Council, such a power is not wanted, and it is not provided for in the Bill. There is no power for the Secretary of State to do that. This is not a way of pre-empting or bringing forward what may be a consequence of the wholly separate White Paper provisions.

I agree that the White Paper—certainly in its comments on the negotiating machinery—paints a different picture. The Government agree with the recommendation of the Bain review of the Fire Service that a new negotiating body should involve representatives of the Retained Firefighters Union, the Fire Officers Association and the Association of Principal Fire Officers. We are also aware that the employers have plans to reform their side of the National Joint Council. Obviously, we will keep a watching brief on all those changes. However, this Bill does not confer the power to affect the constitution or the negotiating machinery.

I freely accept, and I know that it upsets people, that the Bill gives the Secretary of State power to draw a line under a dispute—that is, to impose a settlement. That is the power and I know why my noble friends are annoyed about it. However, that is what it is about. It is not about changing the constitutional machinery of the National Joint Council. As that is not part of the conditions of service of fire brigade members, it cannot be changed by the Bill. There is therefore no need for an amendment that provides that that cannot be done. The Bill as drafted does not provide for it.

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